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Family Law: Unique discovery and evidentiary issues
By Michael Gassner and Gary Nadler

Family law cases involve many discovery and evidentiary issues that are not usually confronted in other matters. It is important for both bench officers and attorneys practicing in this area of law to be fully conversant with these issues.

The objective of this article and self-study test is to familiarize readers with issues typically encountered in family law cases. Readers will learn about dealing with self-represented litigants, evidentiary matters such as hearsay, declarations and discovery methods - including formal and informal discovery and declaration of disclosure requirements.

In family law, as in other contexts, the state has a substantial interest in facilitating the search for truth and promoting justice. Stadish v. Superior Court, 71 Cal. App. 4th 1130 (1999). "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Cal Rules of Ct, Code of Judicial Ethics, Canon 2A. A judge shall accord every person who has a legal interest in the proceeding the right to be heard according to law. Canon 3B(7). Findings must be based on proper evidence. Marriage of Hoffmeister II, 191 Cal. App. 3d 351 (1987).

Many of these judicial duties and responsibilities are severely tested when working in the family law field. Part of the problem lies in the fact that, due to economic constraints, huge numbers of litigants are not represented by lawyers. Another part of the difficulty is that the subject matter involved, dealing with child custody and other marital dissolution issues, lends itself to informal resolution and a relaxation of the rules of evidence.

Self-Represented Litigants

The forces that pull a bench officer in opposite directions are exemplified in the context of self-represented litigants. A very large percentage of family law litigants do not have their own lawyer.

On the one hand, case authority tells a judge to treat self-represented litigants the same as those who are represented by an attorney. Taylor v. Bell, 21 Cal. App. 3d 1002 (1971). One acting as one's own attorney should be restricted to the same rules of evidence and procedure as a person represented by an attorney. Doran v. Dreyer, 143 Cal. App. 2d 289 (1956). Persons representing themselves do not have the right to be exempted from the Code of Civil Procedure. Rappleyea v. Campbell, 8 Cal. 4th 975 (1994).

On the other hand, there is an overriding interest to resolve disputes on the merits, not on technicalities. Harding v. Collazo, 177 Cal. App. 3d 1044 (1986). A judge has a duty to avoid a miscarriage of justice. Lombardi v. Citizens Nat'l Trust & Sav. Bank, 137 Cal. App. 2d 206 (1951).

"Trial judges must acknowledge that in propria persona litigants often do not have an attorney's level of knowledge about the legal system and are more prone to misunderstanding the court's requirements. When all parties are represented, the judge can depend on the adversary system to keep everyone on the straight and narrow. When one party is represented and the other is not, the lawyer, in his or her own client's interests, does not wish to educate the in propria persona litigant. The judge should monitor to ensure the in propria persona litigant is not inadvertently misled, either by the represented party or by the court." Gamet v. Blanchard, 91 Cal. App. 4th 1276 (2001).

The law in the U.S. is based on an adversarial legal system. "However, because it is adversarial - as distinct from 'inquisitorial' - it is sometimes easy to forget that the purpose of the system is not to hold a contest for its own sake. The purpose of our system of justice is still, in Justice Traynor's phrase, 'the orderly ascertainment of the truth' (Jones v. Superior Court (1962) 58 Cal. 2d 56, 60 [22 Cal. Rptr. 879, 372 P.2d 919, 96 A.L.R.2d 1213]) and the application of the law to that truth." Guardianship of Simpson, 67 Cal. App. 4th 914 (1998).

A judge in the family law context must strike a careful balance. The bench officer must preserve the adversarial system, but must still explain its orders and translate legalese for pro per litigants. See Monastero v. Los Angeles Transit Co., 131 Cal. App. 2d 156 (1955); Taylor v. Bell, 21 Cal. App. 3d 1002 (1971). The overriding concern must be to have truth and justice prevail.

Evidence in Family Law

The tension between the official rules and the drive to "do the right thing" is also palpable concerning evidence in family law.

Except as otherwise specifically provided, the rules of practice and procedure that apply to civil actions apply to family law cases. Fam C Section 210. It is clear that "[t]he rules of procedure for reaching family law decisions - contained in the Family Code, the Code of Civil Procedure, the California Rules of Court, and local court rules - are not mere suggestions. The rules of procedure are commands which ensure fairness by their enforcement." Marriage of Seagondollar, 139 Cal. App. 4th 1116 (2006).

Nonetheless, the rules of evidence themselves permit a wide range of matters to be properly presented before the trier of fact. For example, narrative testimony may form the basis for admission of evidence, such as establishing a hearsay exception. If there is no objection, the court may exercise discretion whether to receive evidence that would otherwise be excluded. Of course, even in the absence of an objection, if the proffered evidence is too unreliable, the court itself may object.

These concerns come to the fore when dealing with hearsay and declarations filed in court.

Hearsay "is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." Evid C Section 1200(a). The inadmissibility of hearsay is designed to ensure the trustworthiness or reliability of evidence. People v. Ayala, 23 Cal. 4th 225 (2000). When presented with timely objections, whether on hearsay or other grounds, a judge must expressly rule on the individual objections. Demps v. San Francisco Housing Auth., 149 Cal. App. 4th 564 (2007).

One common mistake made by litigants, especially ones that are self-represented, is to assume that because something is argued in the points and authorities supporting a motion, it is admissible in evidence. There is no "points and authorities" exception to the hearsay rule. Points and authorities are inadmissible hearsay, and they also cannot be admitted because they are not made under penalty of perjury and are not based on personal knowledge.

Declarations present a similar problem. A declaration must be signed under penalty of perjury; otherwise the declaration is hearsay. Kulshrestha v. First Union, 33 Cal. 4th 601 (2004). The declaration cannot be made on information and belief. CCP Section 2015.5; Elkins v. Superior Court, 41 Cal. 4th 1337 (2007). Further, the declarant must have personal knowledge of the relevant facts or the documents subject to authentication. Evid C Sections 702, 1400; Jeffers v. Screen Extras Guild, Inc., 134 Cal. App. 2d 622 (1955). Thus, arguments in points and authorities, or in forms, are not admissible evidence unless they are made under penalty of perjury. Tri-State Mfg. Co. v. Superior Court, 224 Cal. App. 2d 442 (1964).

Technical defects in a declaration prevent consideration by court if there is an objection. Baron v. Mare, 47 Cal. App. 3d 304 (1975). Under Evid C Section 702, the declaration must show personal knowledge of the declarant. Hence, a statement such as, "I have personal knowledge of the facts stated herein ... ," standing alone, is insufficient: the declaration must clearly establish the declarant's connection and source of knowledge of the matters stated. Osmond v. EWAP, Inc., 153 Cal. App. 3d 842 (1984). Of course, if the opposing party fails to object, the court may consider the declaration. Broden v. Marin Humane Soc'y, 70 Cal. App. 4th 1212 (1999).

Discovery Methods

Discovery mechanisms in family law are generally the same as in other cases, with both informal and formal production of documents and information being used. There are some family law nuances that must be noted.

Informal discovery is prevalent in areas such as family law that involve so many litigants not represented by lawyers. So long as an open exchange of evidence and information is achieved, informal discovery should be encouraged.

Nonetheless, litigants will have to sometimes be reminded that the evidence at issue must have been legally obtained to be admissible. Eavesdropping on a telephone call is common: such evidence is specifically inadmissible in dissolution, nullity or legal separation proceedings. Fam C Section 2022. Recordings of such calls are also inadmissible when done "willfully and without the consent of all parties to the communication." See Pen C Section 631(c) ("no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding").

Formal discovery rules, including all applicable time limits and sanctions for noncompliance, apply to family law. As stated by Cal Rules of Ct 5.21, "[e]xcept as otherwise provided in these rules, all provisions of law applicable to civil actions generally apply to a proceeding under the Family Code." Rule 3.1100 provides that "[t]he rules in this division apply to proceedings in civil law and motion ... and to discovery proceedings in family law."

Formal discovery is broad in family law, but there are limits. For example, antiquated financial records are not relevant in determining a party's present ability to pay child support. Thomas B. v. Superior Court, 175 Cal. App. 3d 255 (1985). Further, when the discovery implicates a third party's right to financial privacy, courts must balance the spouse's need for discovery against the third party's constitutionally protected interest in privacy. Schnabel v. Superior Court, 5 Cal. 4th 704 (1993).

Under Fam C Sections 2100 et seq, a declaration of disclosure is a family law-specific requirement for production. The public policy underlying the declaration of disclosure is the early, and full and accurate, production of all assets and liabilities in which one or both parties have or may have an interest. The list must include assets regardless of the characterization as community or separate property, with a disclosure of all income and expenses of the parties. See Fam C Section 2102.

A preliminary declaration of disclosure must be filed under penalty of perjury when the party's petition is served. Fam C Section 2104. The final declaration of disclosure must be filed before or at the time the parties enter into an agreement for the resolution of property or support issues other than pendente lite support or, if the case goes to trial, no later than 45 days before the first assigned trial date. Fam C Section 2105.

If a litigant fails to comply with the declaration of disclosure requirements, the court may impose monetary sanctions: "sanctions shall be imposed to deter repetition of the conduct or comparable conduct, and shall include reasonable attorney's fees, costs incurred, or both, unless the court finds that the noncomplying party acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Fam C Section 2107(c).

Michael Gassner is commissioner of the San Bernardino County Superior Court.

Gary Nadler is a judge in the Sonoma County Superior Court.

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